Decision in parades case called vague

Published 12:00 am, Wednesday, April 28, 2010

Gloria Ramirez with San Antonio’s Esperanza Peace and Justice Center (foreground) speaks during a protest outside the 5th U.S. Circuit Court of Appeals in New Orleans.

Gloria Ramirez with San Antonio’s Esperanza Peace and Justice Center (foreground) speaks during a protest outside the 5th U.S. Circuit Court of Appeals in New Orleans.

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Gloria Ramirez with San Antonio?s Esperanza Peace and Justice Center (foreground) speaks during a protest outside the 5th U.S. Circuit Court of Appeals in New Orleans.

Gloria Ramirez with San Antonio?s Esperanza Peace and Justice Center (foreground) speaks during a protest outside the 5th U.S. Circuit Court of Appeals in New Orleans.

Decision in parades case called vague

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NEW ORLEANS — A federal judge's three-page ruling, which dismissed a lawsuit that challenged San Antonio's ordinance regulating parades and marches, was characterized as vague Tuesday at a hearing before the 5th U.S. Circuit Court of Appeals.

It was perhaps the greatest indication given by the appellate justices as to why they decided to consider an appeal from a San Antonio nonprofit organization that's challenging the constitutionality of the ordinance, which was passed Nov. 29, 2007.

U.S. Judge Fred Biery had dismissed the San Antonio Free Speech Coalition's lawsuit last July, giving little reason and essentially agreeing with the city that there was no definitive evidence of constitutional violations.

Biery inherited the case in 2009 after U.S. Judge Xavier Rodriguez, who initially granted a temporary injunction against the lawsuit, recused himself from overseeing the trial because a potential witness was a longtime friend.

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Benavides said the ruling placed the three-judge appellate panel in a difficult position to make a ruling. The panel is, however, expected to decide in coming months if the lawsuit should be resurrected.

For nearly three years, the San Antonio Free Speech Coalition has fought the parade ordinance, claiming it violates the First and 14th amendments to the U.S. Constitution because it waives fees for some marches and quotes prices that range in the tens of thousands for others, effectively giving the city control over what messages are conveyed.

Assistant City Attorney Deborah Lynne Klein reiterated the city's position to the justices Tuesday, saying she believes the ordinance not only is constitutional but is pro-First Amendment.

Local governments have a right to their own speech, subsidizing certain events and not others, she argued, adding that protestors always can conduct a march for free by staying on the sidewalk.

With the same vigor it has shown protesting the ordinance on the steps of San Antonio's City Hall and federal courthouse, members of the Free Speech Coalition swarmed in front of the Louisiana appellate court, pumping their fists in the air and chanting, “Our streets will not be silenced.”

If the circuit court doesn't reverse Biery's ruling, it could have a chilling effect on free speech nationwide, they said.

The Free Speech Coalition added new supporters in its fight on the eve of the hearing.

Standing outside the courthouse alongside coalition members was Yvette Thierry, an organizer with Safe Streets, which advocates changes to New Orleans' criminal justice system. She offered words of encouragement to members of the San Antonio group, whom she met the day before.

In New Orleans, it's the black Mardi Gras parades that tend to get priced out of marching while the city endorses the tourist-attracting white parades, Thierry and other organizers said.

“We are taxpayers. We pay for the right to march in the street,” Thierry said. “If they go after San Antonio's culture today, they'll go after my culture tomorrow.”

The demonstrators quietly filed into the courtroom minutes later.

Although none of the three justices stated outright how he plan to rule, the justices did ask questions Tuesday that hinted at how they might frame the case.

Fielding the questions were Klein and Amy Kastely, a St. Mary's School of Law professor who represents the coalition. “So you're saying the idea of (the city) recovering costs (through the ordinance) is a scam?” Benavides asked Kastely at another point, after she contended the city already waives fees for 90 percent of events requiring traffic control.

Benavides, the most outspoken member of the panel, also asked about the Martin Luther King Day March and two parades that have been exempted by the ordinance from paying traffic-control fees. He asked if they should be considered on the same playing field as other marches that might be considered more political.

All parades convey speech of some sort and therefore are First Amendment-oriented, Kastely replied.

The judges also suggested, however, that there might not be enough precedent for a lawsuit unless there are concrete examples of the new ordinance being used to outprice unwanted speech.

But the city's practices were the same for years before the ordinance was put on the books, Kastely said. The International Women's Day March is an example of a group whose speech is not favored by the city, she said.

Klein pointed out during her argument that police worked with International Women's Day March organizers to provide an affordable option this year. The group was told about one route that would cost about $300, she said. But it instead chose to walk against traffic along a one-way road, which was expected to cost the city thousands, she said.